June 2, 2015

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Khairullozhon Matanov is a 24-year-old former cab driver from Quincy, Massachusetts. The night of the Boston Marathon bombings, he ate dinner with Tamerlan and Dhzokhar Tsarnaev at a kebob restaurant in Somerville. Four days later Matanov saw photographs of his friends listed as suspects in the bombings on the CNN and FBI websites. Later that day he went to the local police. He told them that he knew the Tsarnaev brothers and that they’d had dinner together that week, but he lied about whose idea it was to have dinner, lied about when exactly he had looked at the Tsarnaevs’ photos on the Internet, lied about whether Tamerlan lived with his wife and daughter, and lied about when he and Tamerlan had last prayed together. Matanov likely lied to distance himself from the brothers or to cover up his own jihadist sympathies—or maybe he was just confused.

Matanov continued to live in Quincy for over a year after the bombings. During this time the FBI tracked him with a drone-like surveillance plane that made loops around Quincy, disturbing residents. The feds finally arrested and indicted him in May 2014. They never alleged that Matanov was involved in the bombings or that he knew about them beforehand, but they charged him with four counts of obstruction of justice. There were three counts for making false statements based on the aforementioned lies and—remarkably—one count for destroying “any record, document or tangible object” with intent to obstruct a federal investigation. This last charge was for deleting videos on his computer that may have demonstrated his own terrorist sympathies and for clearing his browser history.

Matanov faced the possibility of decades in prison—twenty years for the records-destruction charge alone.

Federal prosecutors charged Matanov for destroying records under the Sarbanes-Oxley Act, a law enacted by Congress in the wake of the Enron scandal. The law was, in part, intended to prohibit corporations under federal investigation from shredding incriminating documents. But since Sarbanes-Oxley was passed in 2002 federal prosecutors have applied the law to a wider range of activities. A police officer in Colorado who falsified a report to cover up a brutality case was convicted under the act, as was a woman in Illinois who destroyed her boyfriend’s child pornography.

Prosecutors are able to apply the law broadly because they do not have to show that the person deleting evidence knew there was an investigation underway. In other words, a person could theoretically be charged under Sarbanes-Oxley for deleting her dealer’s number from her phone even if she were unaware that the feds were getting a search warrant to find her marijuana. The application of the law to digital data has been particularly far-reaching because this type of information is so easy to delete. Deleting digital data can inadvertently occur in normal computer use, and often does.

In 2010 David Kernell, a University of Tennessee student, was convicted under Sarbanes-Oxley after he deleted digital records that showed he had obtained access to Sarah Palin’s Yahoo e-mail account. Using publicly available information, Kernell answered security questions that allowed him to reset Palin’s Yahoo password to “popcorn.” He downloaded information from Palin’s account, including photographs, and posted the new password online. He then deleted digital information that may have made it easier for federal investigators to find him. Like Matanov, he cleared the cache on his Internet browser. He also uninstalled Firefox, ran a disk defragmentation program to reorganize and clean up his hard drive, and deleted a series of images that he had downloaded from the account. For entering Palin’s e-mail, he was eventually convicted of misdemeanor unlawfully obtaining information from a protected computer and felony destruction of records under Sarbanes-Oxley. In January 2012, the US Court of Appeals for the Sixth Circuit found that Kernell’s awareness of a potential investigation into his conduct was enough to uphold the felony charge.

4

5

At the time Kernell took steps to clean his computer, he does not appear to have known that there was any investigation into his conduct. Regardless, the government felt that they were entitled to that data, and the court agreed that Kernell was legally required to have preserved it.

Hanni Fakhoury, a senior staff attorney at the Electronic Frontier Foundation, says the feds’ broad interpretation of Sarbanes-Oxley in the digital age is part of a wider trend: federal agents’ feeling “entitled” to digital data.

Fakhoury compares the broad application of Sarbanes-Oxley in the digital realm to the federal government’s resistance to cellphone companies that want to sell encrypted phones that would prevent law enforcement from being able to access users’ data. When the new encrypted iPhone came out, FBI Director James Comey told reporters that he didn’t understand why companies would “market something expressly to allow people to place themselves beyond the law.”

“At its core,” Fakhoury says, “what the government is saying is, ‘We have to create a mechanism that allows everybody’s [cellphone] data to be open for inspection on the off-chance that one day in the future, for whatever random circumstance, we need to see that data.’”

Similarly, Fakhoury says the government’s underlying theory in cases like Kernell’s is, “Don’t even think about deleting anything that may be harmful to you, because we may come after you at some point in the future for some unforeseen reason and we want to be able to have access to that data. And if we don’t have access to that data, we’re going to slap an obstruction charge that has as 20-year maximum on you.”

As more and more data are stored online, the government wants and believes it deserves access to that data for policing purposes. But Fakhoury disagrees.

“The idea that you have to create a record of where you’ve gone or open all your cupboards all the time and leave your front door unlocked and available for law enforcement inspection at any time is not the country we have established for ourselves more than 200 years ago.”

This past February the Supreme Court somewhat narrowed the scope of Sarbanes-Oxley in the case of Yates v. United States. The feds had charged a commercial fishing captain under the same record-destruction law for throwing a batch of undersized fish overboard after a federal agent had instructed him not to. The Court ruled that applying Sarbanes-Oxley to the dumping of fish was too far afield from the law’s original corporate-crime purpose. Another Tsarnaev associate, Azamat Tazhayakov, who helped throw Tsarnaev’s backpack full of fireworks into a dumpster, may see his conviction overturned because of the Yates decision.

But it appears that, at least for now, cases like Matanov’s and Kernell’s are still fair game. The Supreme Court did not answer the pressing question of how broadly federal prosecutors are allowed to use Sarbanes-Oxley in the digital age. Can you be prosecuted for deleting a potentially incriminating tweet? For uninstalling Firefox? For clearing your browser history? How much of their digital data should citizens have to preserve in case law enforcement wants to take a look?

In March, Matanov pleaded guilty to all four counts of obstruction of justice. When he entered his plea, he told Judge William G. Young that he maintains his innocence but fears a decades-long sentence were he to go to trial. His plea agreement with prosecutors calls for a 30-month sentence—still a harsh punishment for little more than deleting videos and clearing his browser history. Matanov’s sentencing hearing is scheduled for June.

“The whole case is mystery,” Matanov has said. The “FBI is trying to destroy my life.”

bureaucratic careerists running up their score; concern for broader implications, real justice, nil. ever try to get an innocent man out of prison?

(5)(0)

PrMainesays:

June 3, 2015 at 7:25 pm

To paraphrase an old saying, you can be prosecuted for being a ham sandwich.

(24)(1)

Emilezolasays:

June 3, 2015 at 6:53 pm

If jurisprudence were at the forefront of the judicial system, this guy, if not for being Muslim, would be free and he could get millions if he was to sue the government for actions that are the cornerstone of tyranny, not a democracy.

Whatever happened to the Fifth Amendment to THE CONSTITUTION?

I have seen many cases in the annals of this judicial system of ours, where judges have let confessed criminals go free because, as the criminals confessed" They were harassed."

But those let go free were not Muslims, but blacks. And what this means? That blacks have left the ground of the totem pole and below them come Hispanics, and below Hispanics Muslims. I wonder when that "judicial benefit of the doubt" will cover the bottom two? For Hispanics I could say that I see the light at the end of the proverbial tunnel, but for Muslims? You are on your own, for I don't see reprieve for you now or ever.

If two confessed black criminals are let go free by, I don't know if he was black or white judge, but let go free nevertheless, and Muslims don't get the benefit of the same law, that can only mean they are up the creek w/o a paddle in this "Christian and democratic" nation of ours.

If tortured, and the fact they are innocent don't buy them, in America or Guantanamo, a five minute reprieve, that means this judicial system that is supposed to be blind, has more eyes than the Medusa. This poor victim of our runaway justice should be set free, not to do otherwise will live in infamy forever.

I'm not Muslim, I'm Roman catholic, and offer my apologies to Muslims for being treated like animals by this frail "democracy"of ours killing true democracy one right at a time.

I hope this wouldn't be an omen of worse things to come, because let's remember what that other wise man once said: "First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Cancer, most cancers, can be stopped if detected early, well when tyranny metastasizes, you can kiss your rights good bye and all for not having the guts to stand for "Liberty and Justice For All " and all covers Muslims also. You have been warned, the life you don't defend now from a tyranny disguised as democracy could be yours.

(13)(3)

Danielwolfsays:

June 3, 2015 at 12:44 pm

I was responsible as a board member for stopping a $50MM securities scam by the founder of a public company. I would have been in violation of Sarbanes-Oxley had I not taken action. After ending the scam and attempting unsuccessfully to get the SEC to prosecute, our securities lawyer (with connections inside SEC Enforcement) also tried to convince them to prosecute. Get lost was the basic message, we're not interested, it's too much trouble to bother.

SOx was passed to prevent and to prosecute /corporate/ malfeasance. What I discovered is that it has never been used for that purpose: I could have ignored the corruption I discovered and would not have been prosecuted by the SEC, just as the perp was not prosecuted by the SEC. Yet here we see it being used aggressively to prosecute infractions for which it was never intended.

This stinks. To high heaven.

(47)(0)

Archie1954says:

June 3, 2015 at 9:01 am

Such a law is normal for a tyranny but unbelievable for a democracy formed under the rule of law. Intent is normally required to find guilt. There can be no intent at the time of the act when information of legal prosecution is not proven.

(30)(0)

Disqus_9UvffErFNEsays:

June 3, 2015 at 8:57 am

I don't agree this law. My properties I can do when, where and what I want except others properties.

(7)(1)

Rebusshlarsays:

June 3, 2015 at 8:07 am

Im using cc cleaner on my net History . oh noes come and get me gov lulz i dare ya to kick in my door.

2002...didn't Bush testify in Congress after that date didn't lie under oath because he was never put under oath but lied none the less. That was surely obstruction of justice... why does this law not apply?

(9)(0)

CASnydersays:

June 3, 2015 at 5:08 am

Clearing browser history and cookies at regular intervals used to be a recommended security practice, but now they want to send old-school nerds to prison for 20 years for doing so? And sometimes people need to delete info from their hard drive just to make room for more info, so they can keep their computer running. This interpretation of a law meant to stop corp crooks is going too far.

(60)(0)

Disqus_bNPIB43AeUsays:

June 3, 2015 at 6:12 am

This is going way too far, the fact he cleared his browser should not even be used as evidence and certainly not a reason to prosecute him.

(37)(0)

Southingtoniansays:

June 3, 2015 at 3:44 am

imagine if we were required to keep every daily diary, letter, mnemonic note, and shopping list we ever wrote or received. How is this different?

(28)(3)

Vcragainsays:

June 3, 2015 at 2:06 am

Made me think ! I am not anticipating being a criminal, but that won't matter if you are considered a necessary part of someone's trial, and you DID delete something. This is plain crazy, and it seems that no matter how much information they get, they just want EVERYTHING - do we have to record all our whispers next - just in case something we said on a bus can be construed as 'evidence' - complete craziness !
Actually people will start setting auto-delete on to everything they can if this is where we are going ! I already have my browser settings set to not keep information, but
obviously that is now criminal ! The 'Tor' browser is confidential, I haven't bothered to use it yet, but maybe I will now that I am angry about this !!!
Yes and JohnDThorpe is absolutely correct - these rules only apply to us little guys - corporations do exactly as they please and lie, cheat & steal in the name of 'business' - try working on that problem first please !

(61)(1)

Expatinparadisesays:

June 4, 2015 at 11:13 am

They still have to prove obstructionist intent. I clear my browser history frequently.

(24)(1)

Jenniferclaypoolemillersays:

June 4, 2015 at 3:42 pm

So do I, every day or every other day. After so long of collecting everything & doesn't take long, it just makes your browser slower. What happened to "we can find data even if deleted?"

(18)(2)

JohnDThorpesays:

June 3, 2015 at 12:51 am

Funny how anti-corporate corruption laws never apply to corporations, but always to people who clearly aren't corporations engaging in non-corpororate activities.

Or how anti-terror laws only seem to apply to non-terrorists, like political opponents (#Occupy).

Or how civil forfeiture laws always manage to apply to people who aren't drug kingpins or Mafia Capos.

It's almost like the entire government is a sham, designed to protect the assets of the uber-wealthy while sticking as many of us in cages on trumped up horseshit as possible.

We need to bring the entire criminal justice system down and start over.

(179)(4)

JohnThackrsays:

June 3, 2015 at 6:05 pm

Or how public employees' rights to collectively bargain are used to keep police officers who murder innocent people in their job with full pay.

What's really funny is that, despite all these examples, progressives will use it as a sign to call for more laws that will inevitably be used disproportionately against people who lack power.

Do you really think that, e.g., laws against "hate speech" won't be used to define the utterances of the marginalized as hate, while leaving the politically powerful alone?

(18)(7)

Northwestwoodssays:

June 4, 2015 at 6:20 am

I don't know of a single liberal that advocates for hate speech laws. You know who wants hate speech laws? Christians with a persecution complex.

(55)(11)

Hipjipcsays:

June 3, 2015 at 5:43 am

With an alleged 12 million sociopaths in the U.S. alone, there is no "bringing down" any system of the uber-wealthy short of euthanizing them. And then that would make us just as effed up as they are. Our only hope lies with neuro- psychologists, biologists and scientists to find a way to fix these organic beings, who for whatever reason, be it biological or accidental, are without a strong working conscience. They do not fit the definition of human, humane or humanity in any way shape or form. And they have always been the controllers, the masters, the executioners, the war mongers and the lower functioning one's their lap dogs for stocking their perpetual wars and their police forces. We are screwed, always have been. Biology is not on anyone's side, it's all a crap shoot. Get rid of some, more are born. A more permanent solution has to be found or the human race is forever doomed to repeat history, over and over and over to infinity or extinction and will NEVER truly evolve.

(29)(2)

Austinkonradsays:

June 3, 2015 at 6:08 am

[And then that would make us just as effed up as they are.] No it wouldn't they destroy 10 of millions of lives. They're only a few 100,000.

(10)(3)

Hipjipcsays:

June 3, 2015 at 6:40 am

Well good for you. You just justified your reasons just like a sociopath or psychopath does. I can sense your anger so I know you are not one of course. And your anger is justifiable as is mine and anyone else with a working conscience and the ability to empathize. And there are millions of people with psychopathy, not only a few 100,000. I'm not sure how many more the animals, the environment and those without psychopathy can tolerate.

(8)(3)

Austinkonradsays:

June 3, 2015 at 2:51 pm

What do you think we are? What do you think they are? How do you think we got here? I hope to Christ you're not dumb enough to think altruism is the only instinct that increased humans odds of survival. We are animals. Social Animals that are just as violent, just as greedy, and just as altruistic as any other social animals. We wouldn't have survived had it been any other way. Like it or not the status quo will NEVER EVER EVER CHANGE via votes or any other political means. The working poor/ working class have NO CLOUT. [A more permanent solution has to be found or the human race is forever
doomed to repeat history, over and over and over to infinity or
extinction] Of course we are for ever doomed, and that's that. You call me young (i'm 33) how embarrassing is it that you are this old and are making statements akin to tigers need to stop hunting, fish need to stop swimming, wolfs need to stop being territorial. To quote Beatrice from allstate that's not how this works, that's not how any off this works. Worrying about the exploitation revolution cycle going on forever is like worrying abut the sun not coming up . It is, and will forever will be a permanent fixture barring not some kind goofy new age humans evolving shit (billions of years of evolution from the protoza to the elephant, and you expect that to change?!!! EVERY SINGLE LIVING THING IS OPPORTUNISTIC) It MAY, MAY, a very small chance, change with technological advances like cold fusion and a replicator like from star trac that you can just throw a pile of dirt in and it will pop out a Iphone in a few seconds. That's a hell of a long way a way off. Till then it is what is.

(12)(6)

Wildthangsays:

June 3, 2015 at 12:51 am

Probably a gambit to turn him into an informant agent but since he doesn't go along along come a lot charges.

(21)(1)

Tomamitaisays:

June 3, 2015 at 5:05 am

"Informant"? More likely they wanted him to help them entice others into committing crimes, so the feds can point to their arrests as a "foiled terror plot".

(34)(1)

Northwestwoodssays:

June 4, 2015 at 6:23 am

...which has become the very definition of 'informant' in recent years.